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HomeMy WebLinkAbout08-2559YORK COUNTY COURTHOUSE 04/09/08 PAGE: 1 CIVIL ACTION DOCKET SMITH, HAROLD J CASE NO: 2007-SU-003647-Y01 YK FILING DATE: 09/24/07 VS. JUDGE: WISE, RICHARD M SR PARTY TYPE LITIGANT PARTY NAME Y01 ATTORNEY P00l MARTZ, GARY DENNIS PLAINTIFF FOR CIVI P001 SMITH, HAROLD J ATTORNEY D001 POWELL, W DARREN DEFENDANT FOR CIVI D001 WISE, RICHARD M SR DATE -------- ------------ 04/08/08 00052 00535 FEE/AMOUNT *NOTICE GIVEN RE: PA R. C. P. 236 FAXED TO ATTY MARTZ ON 4-8-08 @1:56PM MAILED TO ATTY POWELL ON 4-8-08 @3PM 04/08/08 00052 00535 *STIPULATION 04/08/08 00052 00535 *ORDER APPROVING STIPULATION/PROTHY DIRECTED TO TRANSFER CASE TO CUMBERLAND CO PROTHY BY THE CT RICHARD K RENN PRESIDENT JUDGE 04/07/08 00052 00017 AS TO SMITH, HAROLD J *CERTIFICATE OF SERVICE OF ANSWERS TO DEFT'S INTERROGATORIES 04/07/08 00052 00016 AS TO SMITH, HAROLD J *CERTIFICATE OF SERVICE OF RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS 04/07/08 00052 00014 AS TO SMITH, HAROLD J *CERTIFICATE OF SERVICE OF PLTF'S INTERROGATORIES TO DEFT-SET #1 04/07/08 00052 00013 AS TO SMITH, HAROLD J *CERTIFICATE OF SERVICE OF PLTF'S INTERROGATORIES TO DEFT-SET #2 04/07/08 00052 00012 AS TO SMITH, HAROLD J *CERTIFICATE OF SERVICE OF PLTF'S REQUEST FOR PRODUCTION OF DOCUMENTS ADDRESSES TO DEFT 03/28/08 00046 00094 AS TO WISE, RICHARD M SR *CERTIFICATE PREREQUISITE TO SVC OF A SUBPOENA PURSUANT TO RULE 4009.22 TO ORTHOPAEDIC AND SPINE SPECIALISTS;SWIF;PENN NATL INSURANCE CO NOTICE OF INTENT TO SERVE SUBPOENA SENT ON W/CERT OF SERVICE 02/21/08 00026 00369 AS TO WISE, RICHARD M SR *PRELIMINARY OBJECTIONS TO PLTFS COMPLAINT WITH CERT OF SVC 02/21/08 00026 00370 AS TO WISE, RICHARD M SR DEFT'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS WITH CERT OF SVC 02/04/08 00023 00039 *PLTFS COMPLAINT WITH CERT OF SVC 02/04/08 00023 00039 AS TO SMITH, HAROLD J *DEFAULT NOTICE RE: PA RCP 237.4 (COMPLAINT) 02/04/08 00018 00046 *CERTIFICATE OF SERVICE OF PLTFS COMPLAINT MAILED US 1SR CLASS TO W DARREN POWELL ESQ ON 2/4/08 BY GARY D MARTZ ESQ o g- ^ s s IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH NO. 2007-SU-3647-401 Plaintiff vs. CIVIL ACTION - LAW RICHARD M. WISE, SR. Defendant JURY TRIAL DEMANDED h., ORDER s AND NOW, this 4?f day of , 2008, upon stipulation of the parties, it is hereby ORDERED as follows: - _" i. The phrase "but is not limited to" contained in paragraph 7 of the ` Complaint and subparagraphs (g) and (h) thereof are stricken; and ii. The case is to be transferred to Cumberland County and the Prothonotary is directed to transfer the case to the Prothonotary of the Court of Common Pleas of Cumberland County. The costs of said transfer shall be paid by Plaintiff. DISTRIBUTION: W. Darren Powell, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 Gary D. Martz, Esquire Martz & Gailey, LLP 96 South George Street, Suite 430 York, PA 17401 BY THE URT: J. York p 0ounty Court of Common Pleas CERTIFIED from the records of the Court of Common Pleas of York County, Pennsylvania this q y of A. . 20 Q this Pamela S. Lee, Prothonotary (-o R? a C- 00 oho f3'1 d .V IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH NO. 2007-SU-3647-401 P.O. Box 3735 York, York County, PA 17402 Plaintiff ?$" a q 0'i v'(TerM vs. RICHARD M. WISE, SR. 154 Wise Road Mt. Pleasant Mills, Snyder County, PA 17853 Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2008, upon careful consideration of Defendant's Preliminary Objections, and any response thereto, said Objections are hereby SUSTAINED and the Prothonotary is directed to transfer the case to the Prothonotary of the Court of Common Pleas of Cumberland County. The costs of said transfer shall be paid by Plaintiff. BY THE COURT: J. DISTRIBUTION: W. Darren Powell, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 Gary D. Martz, Esquire Martz & Gailey, LLP 96 South George Street, Suite 430 York, PA 17401 Prothonotary York County Court of Common Pleas IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH P.O. Box 3735 York, York County, PA 17402 Plaintiff NO. 2007-SU-3647-401 vs. RICHARD M. WISE, SR. 154 Wise Road Mt. Pleasant Mills, Snyder County, PA 17853 Defendant CIVIL ACTION - LAW c- ; r ! JURY TRIAL DEMARb D PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant Richard M. Wise, Sr., by and through his o =_ Zo r-rr N r; ur ct; attorneys, W. Darren Powell, Esquire, and Thomas, Thomas & Hafer, LLP, and files the following Preliminary Objections to Plaintiff's Complaint and, in support thereof, avers as follows: 1. Plaintiff Harold J. Smith initiated this suit to the above docket by the filing of a Writ. Plaintiff filed his Complaint on February 4, 2008. A copy of the Complaint is attached hereto as Exhibit "A". 2. The Complaint alleges that Plaintiff suffered various injuries as a result of an October 28, 2005 automobile accident that occurred on Interstate 83 in New Cumberland, Pennsylvania. 3. Pennsylvania Rule of Civil Procedure 1028(a)(2) permits the filing of preliminary objections based upon improper venue- 260369 4. Pennsylvania Rule of Civil Procedure 1019 requires that pleadings set forth the material facts from which the cause of action is based in a concise and summary form. 0 z 1 0 5. Pennsylvania Rule of Civil Procedure 1028(a)(3) permits the filing of preliminary objections to pleadings that lack the requisite specificity required by Pennsylvania fact pleading rules. 1. PRELIMINARY OBJECTION - IMPROPER VENUE 6. Paragraphs 1 through 5 are incorporated herein by reference as though set forth herein fully. 7. Defendant is a resident of Snyder County, Pennsylvania. (See Paragraph 2 of Plaintiff's Complaint). 8. The occurrence giving rise to the cause of action occurred in Cumberland County, Pennsylvania. (See Paragraph 3 of Plaintiff's Complaint). 9. Pursuant to Pa. R.C.P. 1006, venue for this action is appropriate only in either Snyder or Cumberland Counties. 10. Venue of this action in the Court of Common Pleas of York County is improper. 11. This action should be transferred to the Court of Common Pleas of Cumberland County pursuant to Pa. R.C.P. 1006(e). WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order directing the Prothonotary to forward to the Prothonotary of Cumberland County certified copies of the docket entries, proA410WAWgs, depositions and other papers filed in the action with the cost and fees of the petition for transfer being paid by Plaintiff. 2 If. PRELIMINARY OBJECTION - MOTION TO STRIKE FOR LACK OF SPECIFICITY 12. Paragraphs 1 through 11 above are incorporated herein by reference as though set forth herein fully at length. 13. Pennsylvania Rule of Civil Procedure 1028(a)(3) permits the filing of preliminary objections to pleadings that lack the requisite specificity required by the Pennsylvania fact pleading rules. 14. Paragraph 7 of the Complaint contains allegations of negligence that violate the requisite specificity. 15. In Paragraph 7, Plaintiff alleges that Defendant's negligence "consisted of, but is not limited to, the following:" 16. The inclusion of the phrase "but is not limited to" could include unlimited actions or inactions and, therefore, is violative of the specificity requirements Rules of Civil Procedure and should be stricken. 17. In addition, the following subparagraphs of paragraph 7 are also violative of the specificity requirements as follows: (g) negligence and carelessness at law; and (h) being otherwise careless and negligent under the circumstances as discovery may reveal. 18. The above-referenced language should la s ricken as violative of the Pennsylvania Rules of Civil Procedure. 052090 260369 3 • • WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order striking subparagraphs (g) and (h) of paragraph 7 along with the phrase "but not limited to" in the same paragraph. Respectfully Submitted, THOMAS, THOMAS & By: W. Darren Powell, Esquire Attorney I.D. No. 68953 P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Date: February, 2008 Attorneys for Richard M. Wise, Sr. 4 c , k,g+ ? Ir- 6,1 (&43134038 s3ra3s oooos rv IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA No. 2007-SU-3647-Y01 HAROLD J. SMITH Plaintiff ` vs. Civil Action - Law -' = RICHARD M. WISE, SR. c..n Defendant : Jury Trial Demanded NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth against you in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a default judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service of the York County Bar Association York County Bar Center 137 East Market Street York, PA 17401 Telephone No. (717) 854-8755 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH Plaintiff No. 2007-SU-3647-Y01 vs. RICHARD M. WISE, SR. Defendant AVISO Civil Action - Law Jury Trial Demanded Usted Ha Sido Demandado en la corte. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualiquier otra queja o compensacion reclamados por el Demandante. Usted puede perder dinero, o propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Lawyer Referral Service of the York County Bar Association York County Bar Center 137 East Market Street York, Pennsylvania 17401 Telefono No. (717) 854-8755 • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH : No. 2007-SU-3647-Y01 Plaintiff vs. : Civil Action - Law RICHARD M. WISE, SR. Defendant : Jury Trial Demanded' r-i PLAINTIFF'S COMPLAINT - 1. Plaintiff, Harold J. Smith, is an adult individual residing at Haines Road, PO Box 3735, York, York County, Pennsylvania 17402 2. Defendant, Richard M. Wise, Sr., is an adult individual residing at 154 Wise Road, Mt. Pleasant Mills, Snyder County, Pennsylvania 17853. 3. On October 28, 2005, at or about 2:07 p.m., while in the course and scope of his employment with Punctual Services, Inc. as a delivery driver, Plaintiff was operating a 1997 International box truck bearing Pennsylvania Registration Number AF14066 and proceeding northbound on Interstate 83 and had slowed and stopped his vehicle as he approached a line of stopped vehicles on northbound Interstate 83 at or near the Limekiln Road Exit #40A, New Cumberland, Pennsylvania. 4. On October 28, 2005 at or about 2:07 p.m. Defendant was the owner and operator of a 1995 Chevrolet -r 0 ;4t•,AA,astez.In ck with Pennsylvania 52090 250 69 Registration Number YMH-4492 and was 3 also proceeding northbound on Interstate 83 at or near the Limekiln Road Exit #40A, New Cumberland, Pennsylvania behind the vehicle being operated by Plaintiff. 5. On October 28, 2005 at or about 2:07 p.m. Defendant negligently and carelessly allowed the vehicle which he was operating to strike Plaintiff's vehicle in the rear, causing injuries and damages to Plaintiff as hereinafter set forth. 6. Said accident and the resulting injuries and damages to Plaintiff were caused solely by the negligence and carelessness of Defendant and were due in no manner whatsoever to any act or failure to act on the part of Plaintiff. 7. The negligence and carelessness of Defendant in the operation of his motor vehicle consisted of, but is not limited to, the following: a) Failure to have his vehicle under proper control; b) Failure to keep a proper lookout for the presence of other motor vehicles on the roadway and surrounding traffic conditions; c) In continuing to operate his vehicle in a direction towards Plaintiff's motor vehicle when Defendant saw, or in the exercise of reasonable diligence should have seen, that further operation in that direction would result in a collision; d) Following Plaintiff's vehicle too closely in violation of the provisions of the Pennsyly o9l?1M0$ ffehicle Code found at 75 Pa.C.S.A. § 3310; 0 1 0 e) Failure to operate his vehicle at such a speed and with such control having regard for road and traffic conditions that he could bring his vehicle to a stop within his assured clear distance ahead in violation of the provisions of the Pennsylvania Motor Vehicle Code found at 75 Pa.C.S.A. § 3361; f) Operating his vehicle with careless disregard for the rights and safety of other individuals lawfully proceeding on the roadway, including Plaintiff, in violation of the provisions of the Pennsylvania Motor Vehicle Code found at 75 Pa.C.S.A. § 3714; g) Negligence and carelessness at law; and h) Being otherwise careless and negligent under the circumstances and as discovery may reveal. 8. Solely as a result of said accident and the negligence and carelessness of Defendant, Plaintiff has suffered personal injuries including, but not limited to, the following: injuries to his cervical and lumbar spine with symptoms associated with these injuries including, but not limited to, neck pain, back pain, and radicular symptoms into his 05 260369 9. Solely as a result of said accident and the negligence and carelessness of Defendant, Plaintiff has been forced to incur medical expenses in treatment of the injuries suffered by him in this accident, and Plaintiff will or may continue to incur medical expenses in the future treatment of injuries suffered by him in this accident. 10. Solely . as a result of said accident and the negligence and carelessness of Defendant, Plaintiff has suffered a loss of earnings and/or an impairment of his earning capacity, and Plaintiff will or may continue to incur a loss of earnings and/or an impairment of his earning capacity into the future. 11. Plaintiff was in the course and scope of his employment for Punctual Services, Inc. at the time of the subject accident, and as a result the State Workers' Insurance Fund (SWIF) has paid workers' compensation indemnity and medical benefits for which SWIF has asserted a subrogation lien which is recoverable in this action and which to date is $76,487.53. 12. As a further result of said accident and the negligence and carelessness of Defendant, Plaintiff has suffered and in the future will or may continue to suffer from mental and physical pain and suffering, a loss of enjoyment of life, embarrassment, humiliation, anxiety, and a limitation in his pursuit of daily activities, all to his great loss and detriment. 13. At the time of the subject accident Plaintiff was covered by the full tort option on his motor vehicle insurance policy and was operating his employer's truck, and therefore he has full tort rights in this action. limits of arbitration R 14. This matter is alleged to and a jury trial is hereby demanded. s WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment against Defendant in an amount in excess of Thirty Thousand Dollars ($30,000), plus costs and interest as allowed by law. Date: ?y5? Respectfully submitted, Gary D. Martz squire Counsel laintiff 96 h George Street, Suite 430 rk, PA 17401 (717) 852-8379 Supreme Court ID Number: 35554 i • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH : No. 2007-SU-3647-Y01 Plaintiff vs. : Civil Action - Law RICHARD M.WISE, SR. Defendant : Jury Trial Demanded VERIFICATION I verify that the foregoing facts are true, upon my personal knowledge or information and belief. This verification is made subject to the penalties of Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: Harold J. S;m6fi i • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH : No. 2007-SU-3647-Y01 Plaintiff vs. : Civil Action - Law RICHARD M. WISE, SR. Defendant : Jury Trial Demanded CERTIFICATE OF SERVICE I hereby certify that I have this ??y of February 2008, served a true and correct copy of the foregoing Plaintiff's Complaint by placing a copy in the United States First Class Mail, directed to the office address of the following: W. Darren Powell, Esquire Thomas, Thomas & Hafer, LLP PO Box 999 Harrisburg, PA 17108-0999 By: Gary D. Martz, t wire Martz & Ga' LP Couns or Plaintiff 96 .George Street, Suite 430 ork, PA 17401 (717) 852-8379 I.D. No. 35554 C i r CERTIFICATE OF SERVICE I, Nora A. Starnes, a legal secretary with the law firm of Thomas, Thomas & Hafer, LLP, do hereby certify that a copy of the foregoing PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT was served upon the following by United States, first class mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: C) co Gary D. Martz, Esquire C, , Martz & Gailey, LLP ` 96 South George Street =': Suite 430 ?.? ??- York, PA 17401 Counsel for Plaintiff ?• cn En Nora A. Starnes Date: February 1_.,9 , 2008 569762.1 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH P.O. Box 3735 York, York County, PA 17402 Plaintiff vs. RICHARD M. WISE, SR. 154 Wise Road Mt. Pleasant Mills, Snyder County, PA 17853 Defendant NO. 2007-SU-3647-401 O t7 CO M ca ' r CIVIL ACTION - LAVA' c rt JURY TRIAL DEMANDED DEFENDANT'S BRIEF IN SUPORT OF PRELIMINARY OBJECTIONS SUMMARY OF FACTS This is personal injury case arising out of a motor vehicle accident. Plaintiff, Harold Smith, filed his Complaint against Defendant Richard M. Wise, Sr. alleging that Plaintiff suffered personal injury as a result of the October 28, 2005 accident. (Complaint at paragraph 5). Plaintiff avers that the accident was caused by the negligence of Defendant Wise. (Id.) Defendant has filed Preliminary Objections challenging the venue. The subject accident happened on Interstate 83 North, at or near the Limekiln Road exit, Exit 40A, New Cumberland, Pennsylvania. ( Complaint at paragraph 4). Defendant Richard Wise resides at 154 Wise Road, Mt. Pleasant Mills, Snyder County. As such, Defendant maintains that venue in not proper in York County and that the suit should be transferred. Defendant has also challenged certar,I ?in the Complaint as U? being overly broad and vague. This brief is filed in support of Defendant's Preliminary Objections. 1 II. LEGAL ISSUES A. Should the Court transfer the case to Cumberland County as venue in York County is improper because Defendant is not a resident of York County and the Accident giving rise to the suit occurred in Cumberland County? B. Should the vague and boilerplate averments in the Complaint be stricken as violative as of Pennsylvania fact pleading requirements? Ill. ARGUMENT A. Venue is not Proper in York County and the case should be transferred to Cumberland County. Improper venue may be raised by preliminary objection. Pa.R.C.P. No. 1006(e); Pa.R.C.P. No. 1028(a)(1). When such an objection is sustained and venue is proper in some other county within the Commonwealth of Pennsylvania, venue is to be transferred to that county with the costs and fees for the transfer and removal of the record being paid by the plaintiff. Pa.R.C.P. No. 1006(e). Rule 1006(a) of the Pennsylvania Rules of Civil Procedure provides: Except as otherwise provided in subdivisions (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which (1) the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law, or (2) the property or a part of the pr s the subject matter of the action is located provided that equ O? sought with respect to the property. Pa.R.C.P. No. 1006(a). 2 • • Rule 1006(a)(2) is inapplicable in this case since the subject matter of this action does not concern property or a part of certain property. Moreover, subdivisions (b) and (c) of Rule 1006 are inapplicable in this case since Defendant is not a political subdivision, a partnership, an unincorporated association, a corporation or any other similar entity, and since this case is not an action to enforce a joint or joint and several liability against two or more defendants. See Pa.R.C.P. No. 1006(b)-(c). Accordingly, venue is only proper in a county where Defendant may be served, a county in which the cause of action arose, a county where a transaction or occurrence took place out of which the cause of action arose or a county authorized by law. York County is an improper venue for the instant action. Defendant is a resident of Snyder County and is not subject to service in York County. Moreover, the transaction or occurrence at issue in this suit is a motor vehicle accident involving Plaintiff and Defendant, which accident occurred in Cumberland County. No law authorizes Plaintiff to bring the instant suit in York County and venue is proper in Cumberland County. Therefore, this Honorable Court should transfer to this action to Cumberland County pursuant to Pa. R.C.P. 1006a) and direct that all costs be paid by Plaintiff. B. The vague and boilerplate averments in the Complaint be should be stricken as violative as of Pennsylvania fact pleading requirements. 052090 26 0 Pennsylvania is a fact pleading state. "A Complaint must not only give the Defendant notice of what the Plaintiffs' claim is and what the grounds are upon which it rests, but it must also formulate the issues by summarizing those facts essential to 3 support the claim." Smith v. Brown, 283 Pa. Super. 116, 120, 423 A.2d 743, 734 (1980) (citations omitted). The "ultimate test" in determining whether the allegations in a complaint comport with the pleading practice in Pennsylvania is whether the complaint adequately informs the adverse party of the issues which he must be prepared to meet so that he may properly prepare his defense for trial. Carvella v. Handy Andy Food Mart, 44 D. & C. 2d 133, 134 (Lawrence 1968). In addition, the Pennsylvania Rule of Civil Procedure require that, when pleading a cause of action, the material facts upon which the action is based must be stated in a concise and summary form. Pa.R.C.P. 1019(a). Mikula v. Harrisburg Polyclinic Hospital, 58 D. & C. 2d 125 (Dauphin 1972). The lack of specificity of a plaintiff's pleading may be raised by way of preliminary objections in the nature of a motion for more specific pleadings, or in the nature of a motion to strike the pleading due to the lack of conformity to law. Pa.R.C.P. 1028(a)(2), (a)(3); Connor v. Allegheny Hospital, 501 Pa. 306, 311, 461 A.2d 600, 602-03 (1983). In Connor v. Allegheny General Hospital, supra, the Pennsylvania Supreme Court upheld a trial court's decision to permit the plaintiff to amend his complaint to allege an entirely new factual theory of liability on the day of trial. The new theory, the court reasoned, "merely amplified" plaintiff's timely allegation that defendant was negligent "in otherwise failing to use due care." Id. 461 A.2d at 602. The defendant in Connor had argued that this eleventh hour amendment prejudiced the defendant. The Court rejected this argument, stating: 052090 260370 If appellee did not know how it "otherwise failed to use due care and caution under the circumstances," it could have filed preliminary objections in the nature of a request for a more specific pleading, or it could have moved to strike that portion of the appellant's complaint. [citations omitted]... In this case, however, appellee apparently understood this 4 allegation ... well enough to simply deny it in its answer. Thus, appellee cannot now claim that it was prejudiced by the late amplification of this allegation.... Id. at 311 n.3, 461 A.2d at 602 n.3 (emphasis added). The opinion in Connor clearly mandates that "catch-all" allegations of negligence should be stricken when the appropriate preliminary objections are made. As noted by the trial court in Lind v. Roberts, 19 Center Leg. J. 24 (No. 83-1296, September 25, 1984): To hold otherwise would require Defendants to prepare to defend against every possible cause of action that might fall within the ambit of the language "otherwise fail to use due care." Clearly, this imposes an impossible burden upon Defendant. Id. at 26. Similar reasoning was followed by the Court in Campital v. Williams, 36 Bucks Co. L. R. 195, 196 (Pa. C.P. Bucks Co. 1981). In that case, plaintiff alleged that defendant was "otherwise negligent in the performance of his duties as an official Pennsylvania State Inspection Station Licensee ". That court sustained defendant's preliminary objections, holding that plaintiff's allegations "fall woefully short of pleading a cause of action." Id. Since the Connor decision, many courts have required a more specific pleading whenever plaintiffs include allegations that defendants were "otherwise negligent", or the equally broad and equally commonplace allet 12WRI TTfendant's negligence may be ascertained "through discovery." See e.g. Farmer v. Rhoads, 43 D. & C. 3d 393, (Pa. C.P. Chester Co. 1986); Marling v. Greene County Memorial Hospital, 5 Greene R.1 (No. 8) (Pa. C.P. Greene Co., December 18, 1986); see also Kitzmiller v. Riverton 5 • • Consolidated Water Co., 38 Cumb. L.J. 33, 34 (Pa. C.P. Cumberland Co. 1988) (striking "otherwise failing to exercise due care under the circumstances"); Simon v. Community General Osteopathic Hospital, 108 Dauph. Co. R. 218, 219 (Pa. C.P. Dauphine Co. 1988) (phrases "otherwise negligent" and "including but not limited to" stricken); South Pymatuning v. Bell of Pa., 23 Mer. Co. L.J. 270, 271-72 (Pa. C.P. Mercer Co. 1988) ("otherwise negligent" and "other negligent acts as may be disclosed through future discovery" held impermissively vague). In Hake v. Ashton, 69 Lanc. L. Rev. 395 (1985), the court determined the sufficiency of the following averments: 9. During the course of the examination and treatment of the plaintiff by the defendants, the plaintiff suffered severe and extensive injuries by virtue of the careless, reckless and negligent conduct of the defendants and each of them. 21. The defendant was careless, reckless and negligent in the care and treatment rendered to the Plaintiff in one or more of the following particulars: (i) Committing negligence of law. Id. The court granted the defendant's Motion for More Specific Pleading, reasoning that the allegations were so general that they failed to provide the defendants with sufficient factual information to prepare their defense. Similarly, in the instant case, in Para rah 7 of his Complaint, Plaintiff alleges that: 052090 2603 0 7. The negligence and carelessness of Defendant in the operation of his motor vehicle consisted of, but is not limited to, the following: 6 • i (g) Negligence and carelessness at law; and (h) Being otherwise careless and negligent under the circumstances and as discovery may reveal. (See, Complaint at paragraph 7. Emphasis added to identify objectionable language). This boilerplate and vague allegation that Defendant's negligence consisted of "but is not limited to" or the identified subparagraphs provide absolutely no guidance as to what or how Defendant allegedly acted negligently. In the first instance, the phrase is simply a term of unlimited import which would allow an open door to the basis of or claims that Plaintiff was making. Similarly, the complained of subparagraphs are merely conclusory statements providing nothing as to what actions or conduct were improper. As such, this type of non specific boilerplate allegation creates the same problems identified by Connor and its progeny, discussed above. Therefore, the language in Paragraph 7, as noted above, should be stricken or, in the alternative, Plaintiff should be directed to file a more specific pleading. In summary, the specified allegations contained in Plaintiff's Complaint do not come close to satisfying the pleading requirements of Pennsylvania law. These allegations are overbroad, vague, boilerplate or catchall allegations. Without more facts, Moving Defendant cannot adequately prepare a defense against these allegations. Prejudice will result in having to pre?_ - _ PrVe to one or more original theories of liability, only later to have to prepare defenses to new theories brought in through the use of "amplification." Moving Defendant should not be forced to waste time and money defending against one or more theories of liability which may later be 7 abandoned by Plaintiffs in favor of some other theory which will be based upon the general allegations set forth in the vague paragraphs of the instant Complaint. Therefore, Moving Defendant respectfully requests this Court to strike Paragraph 7, including the term "but not limited to", and subparagraphs 7(g) and (h) of Plaintiffs' Complaint, or in the alternative, order Plaintiffs to file a more specific Complaint in accordance with the Pennsylvania Rules of Civil Procedure. IV. CONCLUSION For the above stated reasons, this Honorable Court should grant Defendant's Preliminary Objections. T S 7,: THOM & HAF LP W. Darren Powell, Esquire I.D. Number: 68953 305 North Front Street P.O. Box 999 Harrisburg, PA 17101 (717) 237-7154 Date: Attorney for Defendant 8 • • CERTIFICATE OF SERVICE I, Nora A. Starnes, a legal secretary with the law firm of Thomas, Thomas & Hafer, LLP, do hereby certify that a copy of the foregoing DEFENDANT'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS was served upon the following by United States, first class mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Date: February /-7 , 2008 ca Gary D. Martz, Esquire Martz & Gailey, LLP -? t 96 South George Street _.: --- 4;) Suite 430 York, PA 17401 ` = = =- -' Counsel for Plaintiff -" Y- t Nora A. Starnes 9 0 THOMAS, THOMAS& HAFER ATTORNEYS AT LAW Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Street Address: 305 North Front Street, Harrisburg, PA 17101 Phone: (717) 237-7100 Fax: (717) 237-7105 0 LLP www.ttWaw.com W Darren Powell (717) 237-7154 dpowell@tthlaw. com February 19, 2008 Pamela Lee, Prothonotary York County Judicial Center 45 North George Street York, PA 17401 Re: Harold J. Smith v. Richard M. Wise, Sr. No. 2007-SU-3647-401 TT&H File No. 100-80148 Dear Ms. Lee: Q CO =- rn Co E.n Enclosed please find an original and two copies each of Defendant's Preliminary Objections to Plaintiff's Complaint and Brief in Support thereof for filing in the above- captioned matter. Kindly date-stamp the extra copies of the Preliminary Objections and Brief and return them to me in the enclosed self-addressed, stamped envelope. Thank you for your cooperation. Very truly yours, AFER, LLP OMAS, e --- -W. Darren P e WDP/nas:559317.3 052090 2603 70 Enclosures cc: Gary D. Martz, Esquire (w/ Enclosures) Bethlehem Office • 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702 Pittsburgh Office • 301 Grant Street, Suite 1150, Pittsburgh, PA 15219 • Phone: (412) 697-7403 • Fax: (412) 697-7407 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH NO. 2007-SU-3647-401 P.O. Box 3735 York, York County, PA 17402 Plaintiff 0 -; vs. CIVIL ACTION - LAW CO RICHARD M. WISE, SR. r? 154 Wise Road = -" Yl = Mt. Pleasant Mills, Snyder County, PA 17853;-- Defendant JURY TRIAL DEMANDED DEFENDANT'S BRIEF IN SUPORT OF PRELIMINARY OBJECTIONS SUMMARY OF FACTS This is personal injury case arising out of a motor vehicle accident. Plaintiff, Harold Smith, filed his Complaint against Defendant Richard M. Wise, Sr. alleging that Plaintiff suffered personal injury as a result of the October 28, 2005 accident. (Complaint at paragraph 5). Plaintiff avers that the accident was caused by the negligence of Defendant Wise. (Id.) Defendant has filed Preliminary Objections challenging the venue. The subject accident happened on Interstate 83 North, at or near the Limekiln Road exit, Exit 40A, New Cumberland, Pennsylvania. ( Complaint at paragraph 4). Defendant Richard Wise resides at 154 Wise Road, Mt. Pleasant Mills, Snyder County. As such, Defendant maintains that venue in not proper in York County and that the suit should be transferred. Defendant has also challenged certain allegations in the Complaint as being overly broad and vague. This brief is filed in support of Defendant's Preliminary Objections. 1 • II. LEGAL ISSUES • A. Should the Court transfer the case to Cumberland County as venue in York County is improper because Defendant is not a resident of York County and the Accident giving rise to the suit occurred in Cumberland County? B. Should the vague and boilerplate averments in the Complaint be stricken as violative as of Pennsylvania fact pleading requirements? Ill. ARGUMENT A. Venue is not Proper in York County and the case should be transferred to Cumberland County. Improper venue may be raised by preliminary objection. Pa.R.C.P. No. 1006(e), Pa.R.C.P. No. 1028(a)(1). When such an objection is sustained and venue is proper in some other county within the Commonwealth of Pennsylvania, venue is to be transferred to that county with the costs and fees for the transfer and removal of the record being paid by the plaintiff. Pa.R.C.P. No. 1006(e). Rule 1006(a) of the Pennsylvania Rules of Civil Procedure provides: Except as otherwise provided in subdivisions (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which (1) the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law, or (2) the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. Pa.R.C.P. No. 1006(a). 2 0 0 0 Rule 1006(a)(2) is inapplicable in this case since the subject matter of this action does not concern property or a part of certain property. Moreover, subdivisions (b) and (c) of Rule 1006 are inapplicable in this case since Defendant is not a political subdivision, a partnership, an unincorporated association, a corporation or any other similar entity, and since this case is not an action to enforce a joint or joint and several liability against two or more defendants. See Pa.R.C.P. No. 1006(b)-(c). Accordingly, venue is only proper in a county where Defendant may be served, a county in which the cause of action arose, a county where a transaction or occurrence took place out of which the cause of action arose or a county authorized by law. York County is an improper venue for the instant action. Defendant is a resident of Snyder County and is not subject to service in York County. Moreover, the transaction or occurrence at issue in this suit is a motor vehicle accident involving Plaintiff and Defendant, which accident occurred in Cumberland County. No law authorizes Plaintiff to bring the instant suit in York County and venue is proper in Cumberland County. Therefore, this Honorable Court should transfer to this action to Cumberland County pursuant to Pa. R.C.P. 1006a) and direct that all costs be paid by Plaintiff. B. The vague and boilerplate averments in the Complaint be should be stricken as violative as of Pennsylvania fact pleading requirements. Pennsylvania is a fact pleading state. "A Complaint must not only give the Defendant notice of what the Plaintiffs' claim is and what the grounds are upon which it rests, but it must also formulate the issues by summarizing those facts essential to 3 support the claim." Smith v. Brown, 283 Pa. Super. 116, 120, 423 A.2d 743, 734 (1980) (citations omitted). The "ultimate test" in determining whether the allegations in a complaint comport with the pleading practice in Pennsylvania is whether the complaint adequately informs the adverse party of the issues which he must be prepared to meet so that he may properly prepare his defense for trial. Carvella v. Handy Andy Food Mart, 44 D. & C. 2d 133, 134 (Lawrence 1968). In addition, the Pennsylvania Rule of Civil Procedure require that, when pleading a cause of action, the material facts upon which the action is based must be stated in a concise and summary form. Pa.R.C.P. 1019(a). Mikula v. Harrisbur Polyclinic Hospital, 58 D. & C. 2d 125 (Dauphin 1972). The lack of specificity of a plaintiff's pleading may be raised by way of preliminary objections in the nature of a motion for more specific pleadings, or in the nature of a motion to strike the pleading due to the lack of conformity to law. Pa.R.C.P. 1028(a)(2), (a)(3); Connor v. Allegheny Hospital, 501 Pa. 306, 311, 461 A.2d 600, 602-03 (1983). In Connor v. Allegheny General Hospital, supra, the Pennsylvania Supreme Court upheld a trial court's decision to permit the plaintiff to amend his complaint to allege an entirely new factual theory of liability on the day of trial. The new theory, the court reasoned, "merely amplified" plaintiff's timely allegation that defendant was negligent "in otherwise failing to use due care." Id. 461 A.2d at 602. The defendant in Connor had argued that this eleventh hour amendment prejudiced the defendant. The Court rejected this argument, stating: If appellee did not know how it "otherwise failed to use due care and caution under the circumstances," it could have filed preliminary objections in the nature of a request for a more specific pleading, or it could have moved to strike that portion of the appellant's complaint. [citations omitted]... In this case, however, appellee apparently understood this 4 1 0 0 allegation ... well enough to simply deny it in its answer. Thus, appellee cannot now claim that it was prejudiced by the late amplification of this allegation... Id. at 311 n.3, 461 A.2d at 602 n.3 (emphasis added). The opinion in Connor clearly mandates that "catch-all" allegations of negligence should be stricken when the appropriate preliminary objections are made. As noted by the trial court in Lind v. Roberts, 19 Center Leg. J. 24 (No. 83-1296, September 25, 1984): To hold otherwise would require Defendants to prepare to defend against every possible cause of action that might fall within the ambit of the language "otherwise fail to use due care." Clearly, this imposes an impossible burden upon Defendant. Id. at 26. Similar reasoning was followed by the Court in Campital v. Williams, 36 Bucks Co. L. R. 195, 196 (Pa. C.P. Bucks Co. 1981). In that case, plaintiff alleged that defendant was "otherwise negligent in the performance of his duties as an official Pennsylvania State Inspection Station Licensee ". That court sustained defendant's preliminary objections, holding that plaintiff's allegations "fall woefully short of pleading a cause of action." Id. Since the Connor decision, many courts have required a more specific pleading whenever plaintiffs include allegations that defendants were "otherwise negligent", or the equally broad and equally commonplace allegation that defendant's negligence may be ascertained "through discovery." See e.g. Farmer v. Rhoads, 43 D. & C. 3d 393, (Pa. C.P. Chester Co. 1986); Marling v. Greene County Memorial Hospital, 5 Greene R.1 (No. 8) (Pa. C.P. Greene Co., December 18, 1986); see also Kitzmiller v. Riverton 5 9 0 0 Consolidated Water Co., 38 Cumb. L.J. 33, 34 (Pa. C.P. Cumberland Co. 1988) (striking "otherwise failing to exercise due care under the circumstances"); Simon v. Communitv General Osteopathic Hospital, 108 Dauph. Co. R. 218, 219 (Pa. C.P. Dauphine Co. 1988) (phrases "otherwise negligent" and "including but not limited to" stricken); South Pymatuninq v. Bell of Pa., 23 Mer. Co. L.J. 270, 271-72 (Pa. C.P. Mercer Co. 1988) ("otherwise negligent" and "other negligent acts as may be disclosed through future discovery" held impermissively vague). In Hake v. Ashton, 69 Lanc. L. Rev. 395 (1985), the court determined the sufficiency of the following averments: 9. During the course of the examination and treatment of the plaintiff by the defendants, the plaintiff suffered severe and extensive injuries by virtue of the careless, reckless and negligent conduct of the defendants and each of them. 21. The defendant was careless, reckless and negligent in the care and treatment rendered to the Plaintiff in one or more of the following particulars- (i) Committing negligence of law. Id. The court granted the defendant's Motion for More Specific Pleading, reasoning that the allegations were so general that they failed to provide the defendants with sufficient factual information to prepare their defense. Similarly, in the instant case, in Paragraph 7 of his Complaint, Plaintiff alleges that: 7. The negligence and carelessness of Defendant in the operation of his motor vehicle consisted of, but is not limited to, the following: 6 1 0 0 (g) Negligence and carelessness at law; and (h) Being otherwise careless and negligent under the circumstances and as discovery may reveal. (See, Complaint at paragraph 7. Emphasis added to identify objectionable language). This boilerplate and vague allegation that Defendant's negligence consisted of "but is not limited to" or the identified subparagraphs provide absolutely no guidance as to what or how Defendant allegedly acted negligently. In the first instance, the phrase is simply a term of unlimited import which would allow an open door to the basis of or claims that Plaintiff was making. Similarly, the complained of subparagraphs are merely conclusory statements providing nothing as to what actions or conduct were improper. As such, this type of non specific boilerplate allegation creates the same problems identified by Connor and its progeny, discussed above. Therefore, the language in Paragraph 7, as noted above, should be stricken or, in the alternative, Plaintiff should be directed to file a more specific pleading. In summary, the specified allegations contained in Plaintiff's Complaint do not come close to satisfying the pleading requirements of Pennsylvania law. These allegations are overbroad, vague, boilerplate or catchall allegations. Without more facts, Moving Defendant cannot adequately prepare a defense against these allegations. Prejudice will result in having to prepare a defense to one or more original theories of liability, only later to have to prepare defenses to new theories brought in through the use of "amplification." Moving Defendant should not be forced to waste time and money defending against one or more theories of liability which may later be 7 6 0 0 abandoned by Plaintiffs in favor of some other theory which will be based upon the general allegations set forth in the vague paragraphs of the instant Complaint. Therefore, Moving Defendant respectfully requests this Court to strike Paragraph 7, including the term "but not limited to", and subparagraphs 7(g) and (h) of Plaintiffs' Complaint, or in the alternative, order Plaintiffs to file a more specific Complaint in accordance with the Pennsylvania Rules of Civil Procedure. IV. CONCLUSION For the above stated reasons, this Honorable Court should grant Defendant's Preliminary Objections. THDMAS_, THOM & HAF `R, ALP W. Darren Powell, Esquire I.D. Number: 68953 305 North Front Street P.O. Box 999 Harrisburg, PA 17101 (717) 237-7154 Date: Attorney for Defendant j?C? 8 I CERTIFICATE OF SERVICE I, Nora A. Starnes, a legal secretary with the law firm of Thomas, Thomas & is 0 Hafer, LLP, do hereby certify that a copy of the foregoing DEFENDANT'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS was served upon the following by United States, first class mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Gary D. Martz, Esquire Martz & Gailey, LLP 96 South George Street Suite 430 York, PA 17401 Counsel for Plaintiff C= c? ._? -n rn :_s - - 7 = `; cn Z Nora A. Starnes Date: February /? , 2008 9 • • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH P.O. Box 3735 York, York County, PA 17402 Plaintiff vs. NO. 2007-SU-3647-401 CIVIL ACTION - LAW RICHARD M. WISE, SR. 154 Wise Road Mt. Pleasant Mills, Snyder County, PA 17853 C-? c, Defendant JURY TRIAL DEMANDED `- a C71 NOTICE OF INTENT TO SERVE A SUBPOENA CD sr} TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Counsel of Record r Defendant intends to serve subpoenas, identical to the ones that are attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas will be served. THOMAS, THOMAS & HAFER, LLP Date: By: W. DARREN POWELL, ESQUIRE 0/0 -' 305 N. Front Street, P.O. Box 999 Harrisburg, PA 17108 (717) 237-7154 Attorney for Defendant • 0 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH P.O. Box 3735 York, York County, PA 17402 Plaintiff NO. 2007-SU-3647-401 vs. RICHARD M. WISE, SR. 154 Wise Road Mt. Pleasant Mills, Snyder County, PA 17853 Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Orthopaedic & Spine Specialists, P.C., Attn: Custodian of Records, 1855 Powder Mill Road, York, PA 17402. Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all medical records, reports, physical therapy records, treatment notes, diagnostic studies. writings, correspondence, narrative opinion letters, etc. for treatment rendered on behalf of Harold Smith. dob: 01/04/35; ss#176-26-0139. at: Thomas, Thomas & Hafer, LLP, 305 N. Front St., P.O. Box 999. Harrisburg, PA 17108- 0999. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party malting this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUES'1fMLOWING PERSON: NAME: W. Darren Powell, Esquire ????``II" ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7154 SUPREME COURT ID#: 68953 ATTORNEY FOR: Defendant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy • • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH P.O. Box 3735 York, York County, PA 17402 Plaintiff vs. RICHARD M. WISE, SR. 154 Wise Road Mt. Pleasant Mills, Snyder County, PA 17853 Defendant NO. 2007-SU-3647-401 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Hartford Financial Services Group, P.O. Box 61577, King of Prussia, PA 19406; Claim No. 286C24385; DOL 06/26/97; Claimant - Harold Smith; Insured: Maple Press Company, Inc. Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of the entire workers' comp claim file to include medical records, disability slips reports, independent medical examination reports, records reviews, utilization reviews. Bureau documents. etc.: Claimant - Harold Smith dob: 01/04/35• ss#176-26-0139• Claim #286C24385. at: Thomas, Thomas & Hafer, LLP. 305 N. Front St., P.O. Box 999, Harrisburg, PA 17108-0999. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: W. Darren Powell, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA TELEPHONE: (717) 237-7154 SUPREME COURT ID#: 68953 ATTORNEY FOR: Defendant DATE: Sea] of the Court 17108-0999 029090150414 BY THE COURT: Prothonotary/Clerk, Civil Division Deputy 0 • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH P.O. Box 3735 York, York County, PA 17402 Plaintiff vs. RICHARD M. WISE, SR. 154 Wise Road Mt. Pleasant Mills, Snyder County, PA 17853 Defendant NO. 2007-SU-3647-401 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Penn National Insurance Co., P.O. Box 2361, Harrisburg, PA 17105; Claim No. 02685329; Policy No. WC90062878; Insured: Ross Industries, Inc.; DOL: 12/16/02; Claimant: Harold Smith Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of the entire workers' comp claim file to include medical records, disability slips reports, independent medical examination reports, records reviews, utilization reviews, Bureau documents, etc.; Claimant - Harold Smith, dob: 01/04/35; ss#176-26-0139; Employer - Ross Industries, Inc., Claim No. WC90062878: DOL: 12/16/02. at: Thomas, Thomas & Hafer, LLP, 305 N. Front St., P.O. Box 999, Harrisburg, PA 17108-0999. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the parry serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: W. Darren Powell, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA TELEPHONE: (717) 237-7154 SUPREME COURT ID#: 68953 ATTORNEY FOR: Defendant DATE: Sea] of the Court 17108-0999 BY THE COURT: Prothonotary/Clerk, Civil Division Deputy • • CERTIFICATE OF SERVICE AND NOW, this(" day of , 2008, I, Kate A. Wilhelm, a Paralegal in the law firm of Thomas, Thomas & Haf , LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, first class, postage prepaid, to the following: Gary D. Martz, Esquire `?- CO Martz & Gailey, LLP 7VI 9 6 South George Street -< :- ?,-- nIn c'1 Suite 430 r- York, PA 17401 4 4_ ?m~,l / ? .rte ate A. Wil elm, Paralegal - A' 563153.1 i THOMAS, THOMAS &HAFER ATTORNEYS AT LAW Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Street Address: 305 North Front Street, Harrisburg, PA 17101 Phone: (717) 237-7100 Fax: (717) 237-7105 is LLP www.tthlaw.com Kate A. Wilhelm, Paralegal (717) 237-7111 kwilhelm@tthlaw. com January 28, 2008 Pamela Lee, Prothonotary York County Judicial Center 45 North George Street York, PA 17401 Re: Harold J. Smith v. Richard M. Wise, Sr. No. 2007-SU-3647-401 TT&H File No. 100-80148 Dear Ms. Lee: C t= C-.7 ? 4 > C..? o Enclosed please find an original and one copy of a Notice of Intent to Serve Subpoena with regard to the above-captioned matter. Please return a time-stamped copy to my attention in the self-addressed, stamped envelope provided. Thank you for your cooperation. Very truly yours, THOMAS, THQMAS & HAFER, LLP KAW/nas:559317.2 Enclosures cc: Gary D. Martz, Esquire (w/o Enclosures) Wilhelm&G Q .? 0290901 50414 Bethlehem Office • 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702 Pittsburgh Office • 301 Grant Street, Suite 1150, Pittsburgh, PA 15219 • Phone: (412) 697-7403 • Fax: (412) 697-7407 • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH Plaintiff vs. RICHARD M. WISE, SR. Defendant : No. 2007-SU-3647-Y01 Civil Action - Law Jury Trial Demanded NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set ibrt'h against you in the following pages, you must take action within twenty (20) daysr this Complaint and Notice are served, by entering a written appearance personally or try attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a default judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service of the York County Bar Association York County Bar Center 137 East Market Street York, PA 17401 Telephone No. (717) 854-8755 rwrwr?r.wn?+*ww.r 0450(h10 2A039 N rte, -p- CD IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH Plaintiff No. 2007-SU-3647-Y01 vs. RICHARD M. WISE, SR. Defendant Civil Action - Law Jury Trial Demanded AVISO Usted Ha Sido Demandado en la corte. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualiquier otra queja o compensacion reclamados por el Demandante. Usted puede perder dinero, o propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Lawyer Referral Service of the York County Bar Association York County Bar Center 137 East Market Street York, Pennsylvania 17401 Telefono No. (717) 854-8755 .., ?_ X30039 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH Plaintiff : No. 2007-SU-3647-Y01 vs. : Civil Action - Law RICHARD M. WISE, SR. -TI Defendant : Jury Trial Demanded PLAINTIFF'S COMPLAINT == 1. Plaintiff, Harold J. Smith, is an adult individual residing at 300 Haines Road, PO Box 3735, York, York County, Pennsylvania 17402 2. Defendant, Richard M. Wise, Sr., is an adult individual residing at 154 Wise Road, Mt. Pleasant Mills, Snyder County, Pennsylvania 17853. 3. On October 28, 2005, at or about 2:07 p.m., while in the course and scope of his employment with Punctual Services, Inc. as a delivery driver, Plaintiff was operating a 1997 International box truck bearing Pennsylvania Registration Number AF14066 and proceeding northbound on Interstate 83 and had slowed and stopped his vehicle as he approached a line of stopped vehicles on northbound Interstate 83 at or near the Limekiln Road Exit #40A, New Cumberland, Pennsylvania. 4. On October 28, 2005 at or aboq ri Defendant was the owner and operator of a 1995 Chevrolet T1MhkWWJck with Pennsylvania Registration Number YMH-4492 and was also proceeding northbound on Interstate 83 at or near the Limekiln Road Exit #40A, New Cumberland, Pennsylvania behind the vehicle being operated by Plaintiff. 5. On October 28, 2005 at or about 2:07 p.m. Defendant negligently and carelessly allowed the vehicle which he was operating to strike Plaintiff's vehicle in the rear, causing injuries and damages to Plaintiff as hereinafter set forth. 6. Said accident and the resulting injuries and damages to Plaintiff were caused solely by the negligence and carelessness of Defendant and were due in no manner whatsoever to any act or failure to act on the part of Plaintiff. 7. The negligence and carelessness of Defendant in the operation of his motor vehicle consisted of, but is not limited to, the following: a) Failure to have his vehicle under proper control; b) Failure to keep a proper lookout for the presence of other motor vehicles on the roadway and surrounding traffic conditions; C) In continuing to operate his vehicle in a direction towards Plaintiff's motor vehicle when Defendant saw, or in the exercise of reasonable diligence should have seen, that further operation in that direction would result in a collision; d) Following Plaintiff's Sely in violation of the provisions of the Pennsylvania Q6t'o'r Vehicle Code found at 75 Pa.C.S.A. § 3310; ? i e) Failure to operate his vehicle at such a speed and with such control having regard for road and traffic conditions that he could bring his vehicle to a stop within his assured clear distance ahead in violation of the provisions of the Pennsylvania Motor Vehicle Code found at 75 Pa.C.S.A. § 3361; f) Operating his vehicle with careless disregard for the rights and safety of other individuals lawfully proceeding on the roadway, including Plaintiff, in violation of the provisions of the Pennsylvania Motor Vehicle Code found at 75 Pa.C.S.A. § 3714; g) Negligence and carelessness at law; and h) Being otherwise careless and negligent under the circumstances and as discovery may reveal. 8. Solely as a result of said accident and the negligence and carelessness of Defendant, Plaintiff has suffered personal injuries including, but not limited to, the following: injuries to his cervical and lumbar spine with symptoms associated with these injuries incl ?j?';1UJ- limited to, neck pain, , 57 back pain, and radicular symptoms into his I r.??:•-..-•? 9. Solely as a result of said accident and the negligence and carelessness of Defendant, Plaintiff has been forced to incur medical expenses in treatment of the injuries suffered by him in this accident, and Plaintiff will or may continue to incur medical expenses in the future treatment of injuries suffered by him in this accident. 10. Solely as a result of said accident and the negligence and carelessness of Defendant, Plaintiff has suffered a loss of earnings and/or an impairment of his earning capacity, and Plaintiff will or may continue to incur a loss of earnings and/or an impairment of his earning capacity into the future. 11. Plaintiff was in the course and scope of his employment for Punctual Services, Inc. at the time of the subject accident, and as a result the State Workers' Insurance Fund (SWIF) has paid workers' compensation indemnity and medical benefits for which SWIF has asserted a subrogation lien which is recoverable in this action and which to date is $76,487.53. 12. As a further result of said accident and the negligence and carelessness of Defendant, Plaintiff has suffered and in the future will or may continue to suffer from mental and physical pain and suffering, a loss of enjoyment of life, embarrassment, humiliation, anxiety, and a limitation in his pursuit of daily activities, all to his great loss and detriment. 13. At the time of the subject accident Plaintiff was covered by the full tort option on his motor vehicle insurance olicy -and was operating his employer's truck, and therefore he has fu4d4 1,i his action. 14. This matter is alleged to exceed the applicable limits of arbitration and a jury trial is hereby demanded. • Respectfully submitted, WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment against Defendant in an amount in excess of Thirty Thousand Dollars ($30,000), plus costs and interest as allowed by law. Date: i ?65?- Gary D. Martz squire Counsel laintiff 96 h George Street, Suite 430 rk, PA 17401 (717) 852-8379 Supreme Court ID Number: 35554 lluvvvv lvvv'TN • • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH : No. 2007-SU-3647-Y01 Plaintiff vs. : Civil Action - Law RICHARD M.WISE, SR. Defendant : Jury Trial Demanded VERIFICATION I verify that the foregoing facts are true, upon my personal knowledge or information and belief. This verification is made subject to the penalties of Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: //OU Harold J. Sm IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH : No. 2007-SU-3647-Y01 Plaintiff : vs. : Civil Action - Law RICHARD M. WISE, SR. : Defendant : Jury Trial Demanded CERTIFICATE OF SERVICE I hereby certify that I have this ?y of February 2008, served a true and correct copy of the foregoing Plaintiff's Complaint by placing a copy in the United States First Class Mail, directed to the office address of the following: W. Darren Powell, Esquire Thomas, Thomas & Hafer, LLP PO Box 999 Harrisburg, PA 17108-0999 By. Gary D. Martz, E uire Martz & Ga' LP Couns or Plaintiff 916. George Street, Suite 430 rk, PA 17401 (717) 852-8379 Vow 35554 045010- WANWO VU G ?stl • • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH P.O. Box 3735 York, York County, PA 17402 Plaintiff vs. RICHARD M. WISE, SR. 154 Wise Road Mt. Pleasant Mills, Snyder County, PA 17853 Defendant NO. 2007-SU-3647-401 ,ti._ h CIVIL ACTION - LAVA; f_ , ?f3A CD JURY TRIAL DND1tD ; C)--, PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter our appearance on behalf of Defendant Richard M. Wise, Sr. with regard to the above-captioned matter. We are authorized to accept service on behalf of the Defendant. Date: JanuaryZ4__, 2008 Respectfully submitted, THO S & , By: owel, I.D. No. 68953 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 (7117)o2337-7154 Att=44 ?, ff?+I3WAlant Richard M. Wise, Sr. 0 1 ? 0 CERTIFICATE OF SERVICE I, Nora A. Starnes, a legal secretary with the law firm of Thomas, Thomas & Hafer, LLP, do hereby certify that a copy of the foregoing PRAECIPE FOR ENTRY OF APPEARANCE was served upon the following by United States, first class mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Gary D. Martz, Esquire CD Martz & Gailey, LLP 96 South George Street Suite 430"'{ York, PA 17401 ' =W ?> Counsel for Plaintiff Nora A. Starnes Date: January /0 , 2008 559277.1 • • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH P.O. Box 3735 York, York County, PA 17402 Plaintiff vs. RICHARD M. WISE, SR. 154 Wise Road Mt. Pleasant Mills, Snyder County, PA 17853 Defendant NO. 2007-SU-3647-401 CIVIL ACTIOU` ; LAVA JURY TRIAL DEMAI&bED RULE TO FILE COMPLAINT AND NOW this day of jLAUfful, 2008, a Rule is entered upon the Plaintiffs to file a Complaint within suffer Judgment of Non Pros. Date: ! og 559447.1 (20) days after service of the Rule, or By ?- Prothonotary THOMAS, THOMAS & HAFER ATTORNEYS AT LAW Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Street Address: 305 North Front Street, Harrisburg, PA 17101 Phone: (717) 237-7100 Fax: (717) 237-7105 i LLP www.tthlaw.com W. Darren Powell (717) 237-7154 dpowell@,)tthlaw.com January 10, 2008 Pamela Lee, Prothonotary York County Judicial Center 45 North George Street York, PA 17401 Re: Harold J. Smith v. Richard M. Wise, Sr. No. 2007-SU-3647-401 TT&H File No. 100-80148 Dear Ms. Lee: C) Enclosed please find an original and three copies each of a Praecipe for Entry of Appearance and a Praecipe for Rule to File Complaint for filing in the above-referenced matter. Please date-stamp the extra copies of the Praecipes and return them to me in the enclosed self-addressed, stamped envelope. By copy of this letter, we are serving counsel for Plaintiff. If you should have any questions with regard to the above, please do not hesitate to contact me. Thank you for your attention to this matter. WDP/nas:559317.1 Enclosures cc: Gary D. Martz, Esquire (w/ Enclosures) Bethlehem Office • 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702 Pittsburgh Office • 301 Grant Street, Suite 1150, Pittsburgh, PA 15219 • Phone: (412) 697-7403 • Fax: (412) 697-7407 Very truly yours, • F-1 L -A IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA HAROLD J. SMITH P.O. Box 3735 York, York County, PA 17402 Plaintiff vs. RICHARD M. WISE, SR. 154 Wise Road Mt. Pleasant Mills, Snyder County, PA 17853 Defendant NO. 2007-SU-3647-401 Lr CIVIL ACTION -LAW C> JURY TRIAL DEMANDn c PRAECIPE FOR RULE TO `FILE COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule on Plaintiff to file a Complaint in the above case within twenty (20) days of service of said Rule, or suffer a judgment of non pros pursuant to Pa.R.C.P. 1037(a). Respectfully Submitted, THOMAS, THOMAS & By: W. arren Powell, Esq-L re,- Attorney I.D. No. 68953 P.Q..BQA qS0... Hafti*r§flJX 17108-0999 (717) 237-7154 Date: January 16 , 2008 Attorneys for Richard M. Wise, Sr. 0 1 - CERTIFICATE OF SERVICE I, Nora A. Starnes, a legal secretary with the law firm of Thomas, Thomas & Hafer, LLP, do hereby certify that a copy of the foregoing PRAECIPE FOR RULE TO FILE COMPLAINT was served upon the following by United States, first class mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Gary D. Martz, Esquire Martz & Gailey, LLP -Y c T 96 South George Street Suite 430 York, PA 17401 Counsel for Plaintiff Nora A. Starnes Date: January 16 , 2008 559266.1 COUNTY OF YORK 'A 0 SERVICE CALL -OFF C, E OF THE SHERIFF (717) 771-9601 10 ?^' A' 1@'.W-1EORGE ST., YORK, PA 17401 12 SHERT,,C i /+13TRUCTIONS PROCESS RECEIPT n? VFPOF RETURN PLEASE TYPE ONLY U NE 1 THRU 12 DO NOT DETACH ANY COPES 1 PLAINTIFF/S/ 2 COURT NUMBER a. ?1 ??? `ii Su-- 3(Dgl-yd 3 DE ENOAN 4 TYPE OF WRIT OR COMP1I?IZUu7-SU-3647-Y01 \ 1,T- IS/ `ICI L ?L `llJJ ?, '!;I' - d 1?\ V' yr - sc. V ?1? 1 ` e \ ()_SSICA SERVE 5 NAME OF INDIVIDUAL, COMPANY. CORPORATION. ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD s2 c4??? ty? W i sue, E: 6 ADDRESS (STREET OR RFO WITH BOX NUMBER. APT NO, CITY. BORO TWP. STATE AND ZIP CODE) AT S i S)L_ ?_C? w k 7. INDICATE SERVICE U PERSONAL U PERSON IN CHARGE DEPUTIZE U CERT MAIL ? 1ST CLASS MAIL U POSTED LI OTHER NOW - 20 I, SHERIFF OF YORK COUNTY, P ereby deputize the sheriff of f1 SNYD COUNTY to execute this W w ke retur f according to law. This deputization being made at the request and risk of the plaintiff. H I N 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE Deputize To Sheriff of Snyder County Advance Fee $75.00 for Snyder County PAid By Attorney. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment. without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE Suite 430 10. TELEPHONE NUMBER 11 DAT FILED Martz & Gaile 1-1 P 6 S. George S York, 1 N&C 6I, V? Z A 3 ?`1 P y 12. SEND NOTICE OF SERVICE COPY TO NAYE AND ADDRESS BELOW: (This area must be completed if notice is to be fled) William M. HoSe,i-Sheri Of York rrd,,nf-v_c d5 w rz,:%,?rra fi+ W4?lr 13r i T'Inn t , f I _ ACE MOW FOR USE OF THE SHERIFF - DO NOT WRITE BELOW THIS Llf 13. 1 acknowledge receipt of thel writ 114. DATE RECEIVED 15 Expiration/Hearing Date or complaint as indicated above. E. James/R. Ahrens 9/ 24/07 10/24/07 16. HOW SERVED PERSONAL ( ) RESIDENCE ( } POSTED( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW IT O I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc named above. (See remarks below.) 18. NAME AND TITLE OF INDIVIDUAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19 Date of Service 20 Time of Service 21. ATTEMPTSI Date I Time I Miles I Int. ' Date I Time I Mlles I Int 1 Date J Time Miles Int Date Time Miles Int. Dale Time Mi s Into Dale Time Miles Int. 22. 285091040104 23- aCosts 24 Serv Costs 25 N/F 26 Mileage 27 0? 28. Sub Total J 29. Pound 30 Notary 31 Surchg 32 Tot. Costs 33 Costs Due It o 34. Foreign County Cosh 35. Advance Costs 36 Service Costs 37. Notary Cert. 38. Mdeage/PostageyNot Found 39 Total Costs 40 Costs Due or eound 41. AFFIRMED and subscribed to before me this SO ANSWERS 44 Signature of ` r 45 DATE 42 day of 20 _ 43 Dep. Sheriff PROTHY / NOTARY 46 Signature of York g 47. OAT County Sheriff 48. Signature of Foreign 49 ATE County Sheriff 50. I ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE 51 DATE RECEIVED OF AUTHORIZED ISSUING AUTHORITY AND TITLE /I 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriffs Office 4. BLUE - Shenfrs office IN THE COURT OF COMMON PLEAS OF YORK COUNTY,, PENNSYLVANIA HAROLD J. SMITH : No. 2007-SU- PO Box 3735 York, York County, PA 17402 Plaintiff vs. Civil Action - Law RICHARD M.WISE, SR. 154 Wise Road Mt. Pleasant Mills, Snyder County, PA 17853 Defendant : Jury Trial Demanded PRAECIPE FOR SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in Trespass in the above case. Writ of Summons shall be issued and forwarded to Sheriff for service. Gary D. Martz, E ,111're Counsel for P ntiff Martz & G ' ey, L L P 96 Sout George Street Suite 4k -' York, PA 17401 (717) 852-8379 y = - R, Date: 2 G? Supreme Court ID Number: 35554 SUMMONS IN CIVIL ACTION - C-11 TO: RICHARD M. WISE, SR. YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAIN IFF HAS COMMENCE AN ACTION AGAINST YOU. r Prothonotary/Clerk, Civil Division D t a e: AZ ii ' 26709?? Deputy W. Darren Powell, Esq. Attorney I.D. No. 68953 THOMAS, THOMAS B HAFER, LLP 305 North Front Street, a Floor P.O. Box 999 Harrisburg, PA 17108-0999 direct dial (717) 237-7154 fax (717) 237-7105 email., dpowell@tthlaw.com Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HAROLD J. SMITH Plaintiff vs. RICHARD M. WISE, SR. Defendant NO. 2008-02559 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Plaintiff, Harold J. Smith Martz & Gailey, LLP 96 South George Street, Suite 430 York, PA 17401 You are hereby notified to plead to the enclosed Answer with New Matter of Defendant within twenty (20) days from service hereof or a default judgment may be entered against you. THOMAS, %y1dI? LLP I. D. #68953 P. O. Box 999 305 North Front Street Harrisburg, PA 17108 Attorneys for Defendant The Phoenix Insurance Company W. Darren Powell, Esq. Attorney I. D. No. 68953 THOMAS, THOMAS & HAFER, LLP 305 North Front Street, a Floor P.O. Box 999 Harrisburg, PA 17108-0999 direct dial (717) 237-7154 fax (717) 237-7105 email: dpowell@tthlaw.com Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HAROLD J. SMITH NO. 2008-02559 Plaintiff vs. CIVIL ACTION - LAW RICHARD M. WISE, SR. : Defendant JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND NOW COMES, Defendant, Richard M. Wise, Sr., by and through his attorneys, W. Darren Powell, Esquire and Thomas, Thomas and Hafer, LLP, and files this Answer with New Matter in response to Plaintiff's Complaint, averring and stating as follows: 1. Denied. After reasonable investigation Defendant is without sufficient information to form a belief as to the truth or veracity of the remaining averments contained in this paragraph and, therefore, the same are denied with strict proof thereof demanded. 2. Admitted. 3. Denied. The averments in this paragraph are denied pursuant to Pa.R.C.P. 1029(e). In addition, the remaining averments contained in this paragraph constitute conclusions of law to which no response is required. 4. Denied. It is denied that Defendant was the owner of referenced vehicles. The remaining averments are denied pursuant to Pa.R.C.P. 1029(e). 2 5. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 6. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 7. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. By way of further response, it is noted that portions of this paragraph have been stricken by agreement and stipulation as set forth in the Court Order dated April 8, 2008. 8. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 9. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 10. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 11. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 12. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 13. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 14. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 3 WHEREFORE, Defendant, Richard M. Wise, Sr., respectfully demands that the Honorable Court enter judgment in its favor and against Plaintiff, Harold J. Smith, with Plaintiff's Complaint being dismissed, with prejudice. NEW MATTER 15. Plaintiffs claims and/or recoverable damages may be barred and/or diminished by the applicable provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law. 16. Plaintiff's claims may be barred and/or diminished by the applicable statute of limitations. 17. Plaintiff's recoverable damages may be limited or precluded by the limited torte election. 18. Plaintiff has failed to state a claim upon which relief may be granted. 19. Plaintiff's claims may be barred and/or diminished by the applicable doctrine of comparative and/or contributory negligence. 4 WHEREFORE, Defendant respectfully requests that this honorable court enter judgment in favor of Defendant and against Plaintiff with Plaintiffs Complaint being dismissed, with prejudice. Respectfully submitted, TFIQXAS, THOMA , LLP W. Darren Powell, Esquire- \ I.D. No. 68953 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Date: (?/;2 z1101? Attorneys for Defendant Richard M. Wise, Sr. 5 VERIFICATION I RICHARD M WISE. SR., hereby state and aver that ; have read the foregoing ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT which has been drafted with the assistance of Defendants counsel Language in the foregoing pleading is that of counsel and not of the undersigned The factual statements contained therein are true and correct to the best of my knowledge information and belief This statement and verification is made subject to the penalties of 16 Pa.C S.A.. § 4904 relating to unsworn falsification to authorities Data -- RICHARD M VdISE SR. r, CERTIFICATE OF SERVICE I, Gina M. Tooth, legal secretary with the law firm of THOMAS, THOMAS, & HAFER, LLP do certify that I served the foregoing Answer With New Matter upon the following person(s), by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: Martz & Gailey, LLP 96 South George Street, Suite 430 York, PA 17401 Date: i%4//Dy 601206.1 Gin . Tooth, Legal Secretary ?a ?? ??? i_J ,?? ?- c _ _? ?._ "" "'? ;T cr7 ?,:: _., _.._. • r _ .. ;? ?,? .{ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HAROLD J. SMITH Plaintiff vs. RICHARD M. WISE, SR. Defendant : No. 08-02559 Civil Action - Law PLAINTIFF' NOW COMES, this d- day of , 2008, Plaintiff, Harold J. Smith, and replies to Defendant, Richard M. Wise, Sr.'s New Matter as follows: 15. Admitted that the Pennsylvania Motor Vehicle Financial Responsibility Law applies to the subject action. The allegation that Plaintiffs claims or damages may be barred or diminished by the application of that Act is denied as a conclusion of law to which no response is required. 16. Denied and averred to the contrary that Plaintiffs claim was timely filed. 17. Denied and averred to the contrary that Plaintiff is a full tort insured. 18. Denied and averred to the contrary that Plaintiff has stated a good and adequate cause of action. 19. Denied and averred to the contrary that Plaintiff was in no way negligent and denied that Plaintiffs conduct in any way subjects him to the application of comparative and/or contributory negligence. WHEREFORE, your Honorable Court is respectfully requested to dismiss Defendant, Richard M. Wise, Sr.'s New Matter and to enter relief as prayed in Plaintiff, Harold J. Smith's Complaint. Respectfully submitted MARTZ & GAILEY, LLP By: 4? 6 HERMAN A. GAIL Y, III, ESQUIRE Attorney I.D. No.: 31097 96 South George Street Suite 430 York, Pennsylvania 17401 (717) 852-8379 Attomey for Plaintiff 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HAROLD J. SMITH vs. No. 08-02559 RICHARD M. WISE, SR. Defendant : Civil Action - Law CERTIFICATE OF SE ICE I hereby certify that I have this day of 42008 served a true and correct copy of the foregoing Plaintiff's Reply to Defendant's New Matter on the following individual as set forth below by first class, United States pre-paid postage: W. Darren Powell, Esquire Thomas, Thomas & Haffer, LLP 305 North Front Street Harrisburg, PA 17108 Attomey for Defendant, Richard M. Wise, Sr. MARTZ & GALLEY, LLP Plaintiff By: _oe;44 d4va--? HERMAN A. GAILEY, 111, ESQUIRE Attorney I.D. No.: 31097 96 South George Street Suite 430 York, Pennsylvania 17401 (717) 852-8379 Attorney for Plaintiff 3 VERIFICATION I, Herman A. Gailey, III, Esquire, do hereby verify that I am the Attorney of Record for the pleading party herein, and that the facts set forth in the foregoing pleading are true to the best of my knowledge, information and belief, upon information supplied, and the verification of the party cannot be obtained within the time allowed for filing of the pleading. I understand that false statements made herein are made subject to the penalties of the 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities. If the pleading contains averments which are inconsistent in fact, after reasonable investigation, I have been unable to ascertain which of the inconsistent averments in the pleading are true, but have knowledge or information sufficient to form a belief that one of them are true. Respectfully submitted, MARTZ & GAILEY LLP By: HERMAN A. GAILEY, III, ESQUIRE I.D. Number: 31097 96 South George Street Suite 430 York, Pennsylvania 17401 r/8 „o (717) 852-8379 t'? ?? ?7L(? .r ?r ? ?.?f ... C. ? +, ,?? ? `-?a ?;? ern, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HAROLD J. SMITH Plaintiff vs. : No. 08-02559 RICHARD M. WISE, SR. Defendant : Civil Action - Law To the Prothonotary: PRAECIPE TO SUBSTITUTE VERIFICATION Please substitute the attached Verification signed by Plaintiff Harold J. Smith for the Verification of Herman A. Gailey, III, Esquire, regarding Plaintiffs Reply to New Matter in the above-captioned case. Respectfully submitted, Date: ?M z* By: _ ?!4 Herman A. Gailey, III, Esquire Martz & Gailey, LLP Counsel for Plaintiff 96 South George Street Suite 430 York, PA 17401 717-852-8379 ID# 31097 VERIFICATION I, HAROLD J. SMITH, do hereby verify that the facts set forth in the foregoing Reply to Defendant's New Matter are true to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of the 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities. If the pleading contains averments which are inconsistent in fact, after reasonable investigation, I have been unable to ascertain which of the inconsistent averments in the pleading are true, but have knowledge or information sufficient to form a belief that one of them are true. Date: / 0/0 H OLD J. S VA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HAROLD J. SMITH vs. Plaintiff RICHARD M. WISE, SR. Defendant No. 08-02559 : Civil Action - Law CERTIFICATE OF SERVICE I hereby certify that I have sent a true and correct copy of the foregoing Praecipe to Substitute Verification, this day of August 2008, by First Class United States Mail to the following: W. Darren Powell, Esquire Thomas, Thomas & Haffer, LLP 305 North Front Street Harrisburg, PA 17108 Respectfully submitted, 14 / / Date: ?A l`E?'w Herman A. Gailey, III, Esquire Martz & Gailey, LLP Counsel for Plaintiff 96 South George Street Suite 430 York, PA 17401 717-852-8379 I D# 31097 ? C ^.? ° w3 ' ? n,r r.Tr`, ; ;... ,? c.? ?, z't .,? , G?'3 ??? ? ? ? = ? - ,. ? r . T? *?-, W? ?: .. ?? ?. ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HAROLD J. SMITH vs. Plaintiff No. 08-02559 RICHARD M. WISE, SR. Defendant Civil Action - Law PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Plaintiff, Harold J. Smith, in the above- captioned matter. Date: Y? oi' k?"$' Respectfully submitted, By: 47? 9?A M Herman A. Gailey, III, Esquire Martz & Gailey LLP Counsel for Plaintiff 96 South George Street Suite 430 York, PA 17401 (717) 852-8379 I.D. No. 31097 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HAROLD J. SMITH Plaintiff vs. RICHARD M. WISE, SR. Defendant No. 08-02559 Civil Action - Law CERTIFICATE OF SERVICE I hereby certify that I have this 0day of August 2008, served a true and correct copy of the foregoing Praecipe for Entry of Appearance by placing a copy in the United States First Class Mail, directed to the office address of the following: W. Darren Powell, Esquire Thomas, Thomas & Haffer, LLP 305 North Front Street Harrisburg, PA 17108 By: -?" ?;? FD Herman A. Gailey, III, Esquire Martz & Gailey LLP Counsel for Plaintiff 96 S. George Street, Suite 430 York, PA 17401 (717) 852-8379 I.D. No. 31097 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HAROLD J. SMITH Plaintiff No. 2008-02559 vs. RICHARD M. WISE, SR. Defendant To the Prothonotary: Civil Action - Law Jury Trial Demanded PRAECIPE TO REMOVE ( X ) Please mark the above captioned action as settled and satisfied. Please issue a Certificate of Satisfaction. OR ( ) Please mark the above captioned judgment or lien settled or satisfied. ;??A G Herman A. Gailey, III, Esquire Attorney for Plaintiff 96 South George Street Suite 430 York, PA 17401 (717) 852-8379 I . D. #31097 Dated: •¦rrrrrrrrrrrrrrrrrrr¦rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr? I, s Ion Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylva , do hereby ackno dge that the above-mentioned case settled, discontinued and ended on the 174- day of 200. In witness whereof I have hereu to set my hand and seal of said Court this ? day of , 200_1_. KO Prothonotary FILIE G 2009 DEC 11 7 PH 2: 22 GUS _: '? 1'